THE first criminal Appeal filed by the State of Guyana since the establishment of the Caribbean Court of Justice (CCJ) in 2005, was allowed by the Full Bench on Friday, the Director of Public Prosecutions (DPP) has disclosed. The Full Bench comprised five Judges with the Honourable Sir Dennis Byron sitting as the President of the Court.
“The appeal focused on the interpretation of Section 8(2) of the Summary Jurisdiction (Appeals) Act, Chapter 3:04, which provides that upon receipt of the Magistrate’s memorandum of reasons for decision, the Clerk shall forthwith, and at latest within 21 days of the receipt thereof, prepare a copy of the proceedings including the reasons for the decision, and when the copy is ready he shall notify the appellant in writing and, on payment of the proper fees, deliver the copy to him,” the DPP explained.
On October 15, 2015, the Majority of the Court of Appeal (Justice of Appeal Roy and Justice Rishi Persaud, sitting as an Additional Judge) in hearing the appeal of Sichan Harrychan v. Suraj Singh ruled that Section 8(2) of the Act had to be strictly complied with by the Clerk and non-compliance would render the Notice sent outside that stipulated period invalid.
The Majority then ordered that a fresh notice be sent by the Clerk to the Appellant, noting that the Clerk’s non-compliance should be remedied through a request for an extension of time within which to comply, in accordance with Section 14 of the said Act.
However, in a dissenting judgment, the Honourable Madam Chief Justice Yonette Cummings-Edwards ruled that non-compliance by the Clerk would not invalidate the notice. The Chief Justice in order to justify her decision referenced the CCJ case of Watson v. Fernandes, and emphasised that service of the Notice on the Attorney equates to service on the Appellant.
On November 17, 2015, Assistant Director of Public Prosecutions Judith Gildharie Mursalin filed a Notice of Application to the CCJ seeking Special Leave to appeal the Majority Decision on this procedural issue in accordance with Section 8 of the CCJ Act and also sought an order that the application for special leave be treated as the hearing.
The Respondent was represented by Attorney-at-Law, Ronald Burch-Smith. “The State submitted that even if the Clerk, constrained by limited resources available to the administration of justice, failed to comply with the time period, his subsequent act of sending the notice was not invalidated since the Section was to be read as directory,” the DPP stated.
Additionally, the State argued that the remedy for the Clerk’s non-compliance could not be an application for an extension of time, since the Clerk was not a party to the proceedings, explaining that Section 2 of the said Act defines Clerk to mean the Clerk of the Magisterial District from which an appeal is brought and if there is no clerk, includes a Magistrate.
The State contended that Parliament would not have envisaged that a Magistrate, performing the duties of Clerk, failing to perform the functions under Section B (2) would have to apply under Section 14 for an extension of time to do so. The State relied on the decision of the Full Court, Williams v. Chesney [1953] LRBG 1 in which it was stated that Section 14 was enacted to allow an intending appellant to make an application for special leave to appeal, who, through some unavoidable circumstances had been prevented from doing so within the prescribed time.
On April 7, 2016, the CCJ granted Special Leave to the Applicant to appeal and on April 22, 2016 allowed the appeal and ordered that section 8(2) of the said Act should be strictly followed by the Clerk of Court and although there may be non-compliance, that would not invalidate the service of the Notice outside that time period.
The Court also ruled that service of the Notice on the Counsel who signed the Notice of Appeal equates to service on the Appellant. The substantive appeal was remitted to the Court of Appeal for hearing with directions that the Court of Appeal take into consideration the considerable delay in this matter.
The decision was delivered via video conference held at the Court of Appeal in Kingston.
Sichan Harrychan was charged on September 28, 2007 with the offence of demanding with menace and was found guilty in November 4, 2010. He was sentenced to three years imprisonment and on November 18 that year, a Notice of Appeal was filed on his behalf. The appeal came up for hearing on July 10, 2015 before the Court of Appeal. There were no grounds of appeal filed by the Appellant and the State sought to have the appeal deemed abandoned in the absence of grounds. In applying for an extension of time within which to submit grounds of appeal, the Appellant argued that even though he did not comply with the Statutory requirements, the Clerk also failed to do so as he was in breach of Section 8(2) since his Notice was sent, not within 21 days after receipt of the Magistrate’s Memorandum of Reasons but some 17 months thereafter.